62024CC0273

Opinion of Advocate General Ćapeta delivered on 16 July 2026

CELEX: 62024CC0273
Datum: 2026-07-16
Källa: eur-lex.europa.eu

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 16 July 2026 ( 1 )

Case C ‑ 273/24 [Naski] ( i )

X.Y.

joined parties:

Prokurator Generalny,

Rzecznik Praw Obywatelskich

(Request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland))

( Reference for a preliminary ruling – Article 267 TFEU – Jurisdiction – Admissibility – Rule of law – Independent and impartial tribunal previously established by law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Reference for a preliminary ruling to the Court by a panel of the Civil Chamber of the Sąd Najwyższy (Supreme Court, Poland) – Change in the composition of that panel after the Court’s answer to the question referred for a preliminary ruling )

I. Introduction

1. Years of backsliding regarding the rule of law in Poland have left a wound that is difficult to heal, despite the willingness of that Member State to remedy the situation.

2. The present case is a worrying example of those difficulties.

3. It invites the Court to rule, not for the first time, on questions relating to the interpretation of the EU requirements of an independent and impartial tribunal previously established by law as enshrined in the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). At the same time, the Court is asked to formulate the remedies for breach of those requirements in a situation where the breach is systemic and has affected large parts of the judiciary in Poland, but which has not yet been successfully addressed and rectified by democratic processes in that Member State itself.

4. The difficulties are accentuated by the peculiar facts of the present case, which, as I will explain in some detail below, originates in an action brought by a then judge challenging a decision to transfer him from one chamber to another of a regional court in Poland and who has now become the Minister of Justice of that Member State.

5. While it is surely the Court’s task in the preliminary ruling procedure to interpret the requirements flowing from the rule of law as concretised in Article 19(1) TEU and Article 47 of the Charter, so as to provide guidance to a referring court to determine whether certain rules or situations in the national judiciary are contrary to those requirements, it is not, to my mind, within the Court’s competence to decide how to address such possible infringements. Rather, bringing the judiciary in conformity with those requirements is the responsibility of each Member State.

6. The Court has essentially expressed this in its recent judgment of 24 March 2026, Rzecznik Praw Obywatelskich (Recusal of a judge of an ordinary court) . ( 2 ) Referring to the pilot judgment of the European Court of Human Rights (ECtHR) in Wałęsa v. Poland , ( 3 ) the Court held that the systemic problems that persist in the Polish judicial system require appropriate legislative and other measures on the part of the Polish State. ( 4 ) I understand that finding as also conveying the message that it is not for the Court to provide solutions for the persisting systemic irregularities.

7. With those introductory remarks in mind, I will first explain, as short and simple as possible, the complex circumstances of the present case. I will then provide my opinion why the present request for a preliminary ruling exceeds the Court’s jurisdiction in the preliminary ruling procedure. Lastly, should the Court nevertheless find it necessary to rule on the present case, I will analyse the question referred.

II. Background

A. Broader context

8. The broader context, marked by the deterioration of judicial independence in Poland after the legislative changes introduced by the previous government, is well known to the judges of the Court of Justice. The Court has been asked to decide on the compatibility with EU law of various elements of those changes in a number of infringement proceedings initiated by the European Commission, and it has interpreted EU law relevant for assessing the validity of those changes in an even greater number of preliminary rulings. Those changes were also assessed in a number of judgments of the ECtHR, attracted widespread international criticism and even led to the initiation, for the first time ever, of the Article 7(1) TEU procedure by the Commission. ( 5 )

9. It seems that more than 3 000 judges were appointed since the legislative changes at issue. ( 6 )

10. Nevertheless, to date and after the change of government in December 2023, no general measures appear to have yet been carried out by Poland to deal with the irregular appointments of those judges. Recently, for example, Poland proposed to divide judges into three categories – green (around 1 200 novice appointments), yellow (around 1 100 persons) and red (around 350 persons in common courts and 80 persons in the Sąd Najwyższy (Supreme Court, Poland; ‘the Supreme Court’) and the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland; ‘the Supreme Administrative Court’)) – and to resolve the illegality of their appointments differently, legalising some by force of law, submitting some to new appointment procedures, or removing certain persons from the positions to which they were appointed. That proposal was submitted to the Venice Commission, which responded with Opinion No 1238/2025 in March 2026, ( 7 ) but so far no concrete legislative or other measures were taken by the Polish State.

11. This is the backdrop of the present case. There is, at the moment, institutional paralysis, as noted by X.Y. at the hearing before the Court. Judges appointed under procedures before the legislative changes do not want to sit on benches with persons appointed as judges under procedures following the legislative changes and hence legitimise their appointments. At the same time, citizens and parties involved in litigation before the courts in Poland cannot be certain whether cases are being adjudicated by an independent and impartial tribunal previously established by law and whether they will result in valid judgments.

B. Circumstances preceding the present case

12. To understand the case at issue, we need to return to the summer of 2018.

13. X.Y., previously referred to as W.Ż., was a judge at a regional court in Poland. By decision of 27 August 2018, the president of that court transferred X.Y., without his consent, from the division of that court in which he held office to another division of the same court.

14. Pursuant to the relevant national law, X.Y. brought an action against that decision before Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’), which decided that there was no need to adjudicate on that action (‘the KRS decision’).

15. On 14 November 2018, X.Y. lodged an appeal against that KRS decision before the Supreme Court. Its examination fell to the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs, Poland; ‘the Extraordinary Chamber’).

16. In the context of that appeal, X.Y. also submitted an application for the recusal of all of the judges comprising the Extraordinary Chamber on the ground that, given the manner of their appointment, they did not meet the requirements of judicial independence and impartiality. The examination of that application for recusal fell to the Sąd Najwyższy (Izba Cywilna) (Supreme Court (Civil Chamber), Poland; ‘the Civil Chamber’), sitting as a panel of three judges.

17. Nevertheless, in the meantime, by order of 8 March 2019, the Extraordinary Chamber, sitting as a single-judge panel comprising BD, dismissed X.Y.’s appeal against the KRS decision (‘BD’s order’), despite the fact that the case file was in the possession of the three-judge panel of the Civil Chamber and X.Y. had not been heard.

18. BD’s order would have put an end to the appeal proceedings, and with them, the interlocutory proceedings in which the three-judge panel of the Civil Chamber was invited to decide. However, the three-judge panel, considering that BD’s order had infringed the law, decided to refer certain questions to an extended composition of the Civil Chamber, sitting as a seven-judge panel. Those questions concerned, among other things, the legal effects of BD’s order on account of the manner of the appointment of BD as a judge.

19. That seven-judge panel of the Civil Chamber, in turn, decided to make a preliminary reference to the Court of Justice on the matter.

20. That reference resulted in the judgment of 6 October 2021 in W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) , ( 8 ) in which the Court gave an interpretation of EU law from which it essentially follows that, given the circumstances of his appointment, BD’s order may not be regarded as being made by an independent and impartial tribunal previously established by law. ( 9 ) The Court therefore considered that the seven-judge panel must, in its answer to the three-judge panel, conclude that, in accordance with the principle of primacy of EU law, it should declare BD’s order null and void. ( 10 )

C. The present case, the question referred and the procedure before the Court

21. Following the W.Ż. judgment, it remained for the seven-judge panel of the Civil Chamber to reply to the three-judge panel that the single-judge panel of the Extraordinary Chamber does not satisfy the requirements of an independent and impartial tribunal previously established by law, which would enable the three-judge panel to declare BD’s order null and void.

22. However, in the period of time between the submission of the order for reference (21 May 2019) and the Court’s judgment in the W.Ż. case (6 October 2021), three judges of the seven-judge panel of the Civil Chamber retired.

23. By order of 26 January 2022, MB, as the President of the Supreme Court directing the work of the Civil Chamber (‘the President of the Civil Chamber’), appointed a new seven-judge panel, in which the three retiring judges were replaced by new persons, along with the judge previously presiding over that panel.

24. That new panel consists of: JK, the First President of the Supreme Court who is the presiding judge, along with KS, CV and RX, all four of whom were newly appointed as judges to the Supreme Court following the legislative changes to the Polish justice system. The three other judges had sat on the original panel: KW, who remains the reporting judge, as well as PW and WZ. Those three judges were appointed to the Supreme Court before such legislative changes.

25. This may be summarised in the following table:

| Old panel | New panel

(1) | TN, presiding | JK, First President of the Supreme Court, presiding – new

(2) | A – retired | KS – new

(3) | B – retired | CV – new

(4) | C – retired | RX – new

(5) | KW, reporting judge | KW, reporting judge – same

(6) | PW | PW – same

(7) | WZ | WZ – same

26. KW, the reporting judge in the seven-judge panel, decided to make the present request for a preliminary ruling because he harbours doubts that the change in the composition of that panel is contrary to EU law.

27. That judge emphasises, inter alia, that the change in the composition of that panel was carried out without objective reasons and contrary to the previous practice of the Civil Chamber in which a panel would be supplemented rather than reappointed in its entirety. Moreover, the panel is composed of a majority of new persons who were appointed under the same circumstances as those in which BD was appointed as a judge. This suggests that such measures may be regarded as aimed at influencing the decision of the panel. That impression is reinforced by the fact that the change was made by MB, as President of the Civil Chamber, who was also appointed as judge to the Supreme Court under the same circumstances as BD and that the subject of the assessment to be carried out by the panel is precisely the circumstances of the appointment of BD. As a result, any ruling by the panel would be vitiated by the same defects as those which marred BD’s order.

28. In addition, the order for reference further indicates that X.Y. submitted applications for the recusal of the four new persons on the panel, which had not yet been examined at the moment when the reference was made. ( 11 )

29. Under those circumstances, KW, as the reporting judge in the seven-judge panel, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘[(1)] In a situation in which the court of last instance of a Member State (Sąd Najwyższy (Supreme Court, Poland)) – following an interpretation of EU law by the [Court of Justice of the European Union] as to the legal consequences of a breach of the fundamental rules of the law of that State concerning the appointment of judges of the Supreme Court, consisting of:

(a) the President of the Republic of Poland handing out letters of appointment to the position of judge of the Supreme Court despite the fact that the resolution of the [KRS], which includes the proposal for appointment of judges, was previously challenged before the national court having jurisdiction (Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), that the Supreme Administrative Court suspended the implementation of that resolution in accordance with national law, and that the appeal proceedings were not concluded, after which proceedings the Supreme Administrative Court) set aside the challenged resolution of the KRS due to its unlawfulness, permanently removing it from the legal order, thereby depriving the process used to appoint judges of the Supreme Court of the legal basis required by Article 179 of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland), which basis consists of a proposal by the KRS for appointment to the position of judge,

(b) pre-appointment proceedings being conducted without regard to the principles of transparency and fairness by a national body (the KRS) which, given the circumstances surrounding its establishment (the selection of judges) and the manner in which it operates, does not meet the requirements of a constitutional body upholding the independence of the courts and of judges, as it was constituted under the procedure stipulated in the ustawy z 8 grudnia 2017 r. o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law of 8 December 2017 amending the Law on the KRS and certain other laws) (Dz. U. of 2018, Item 3),

– is required to resolve a legal question submitted to that court by applying the interpretation of EU law adopted by the CJEU, should the provisions of Article 2, Article 6(1) and (3) and the second subparagraph of Article 19(1) [TEU] and Article 267 TFEU, in conjunction with Article 47 [of the Charter], be interpreted as precluding the participation, in the composition of the Supreme Court deciding this legal question, of any of the persons appointed as judges of the Supreme Court in breach of the rules of national law of a Member State described in point 1(a) or (b) above, and as precluding changes to the composition of the bench of the court of the Member State that made the reference for a preliminary ruling to the CJEU, where such changes take place after the CJEU has delivered its judgment in response to that question and are not justified on objective grounds (for example, death, retirement of the judge who was a member of the court that made the reference for a preliminary ruling),

– and as precluding the taking of any decision-making action in the case involving the resolution of this legal issue, including the issuing of orders as to, in particular, the composition of the Supreme Court or the date on which it is to be heard, by a person appointed as President of the Supreme Court who directs the work of the Civil Chamber and who was also appointed as a judge of the Supreme Court in breach of the rules of national law of a Member State described in points 1(a) and 1(b) above, or by any other person appointed as a judge of the Supreme Court also in breach of the rules of national law of a Member State described in points 1(a) and 1(b) above, with the result that such orders or decision-making acts must be regarded as having no legal effect,

– and as meaning that a judge of the Supreme Court, whose appointment was not vitiated by any of the shortcomings referred to in points 1(a) or (b) above, has the right and the obligation – in order to avoid a case being decided by a court that is not an independent, impartial court previously established by law, within the meaning of EU law – to refuse to sit on a collective bench of the Supreme Court in which a majority of those appointed as judges of the Supreme Court were appointed in breach of the rules of national law of the Member State referred to in point 1(a) or (b) above, and, in the event that the above question is answered in the affirmative, also as meaning that, if appointed to the office of judge of the Supreme Court without the infringements referred to in points 1(a) or 1(b) above, a judge of that court who is the Judge-Rapporteur in a case involving the legal issue in question is empowered to designate the composition of the Supreme Court that is to decide that issue, without regard to the provisions of national law conferring on the President of the Supreme Court directing the work of the Civil Chamber the power to designate the formations of the bench hearing cases heard in the Civil Chamber of the Supreme Court in order to give effect to EU law and its interpretation as adopted by the CJEU , and as precluding any person appointed as a judge of the Supreme Court in breach of the rules of national law of a Member State described in point 1(a) or (b) above or any other person appointed as a judge of the Supreme Court in breach of the rules of national law of a Member State described in point 1(a) or (b) above from holding any executive office in the Supreme Court (inter alia, that of President of that court, including the office of First President of that court or of Presidents of Chambers of the Supreme Court) and any office in the organs of the Supreme Court (such as that of member or deputy member of the College of the Supreme Court or the office of Disciplinary Officer of Chambers of the Supreme Court), which offices may only be exercised by lawfully appointed judges of the Supreme Court, and as precluding such persons from taking any action falling within the jurisdiction of the Supreme Court judges performing the abovementioned functions, in view of their possible influence, in fact or in law, on the exercise of the jurisdictional functions of the Supreme Court?’

30. About a month after the reference in the present case was lodged at the Court, X.Y. was reinstated to his former position as a judge and, on 24 July 2025, he was appointed Minister of Justice, thereby resigning from his position as judge on the same day. ( 12 )

31. The Court decided to request a number of additional clarifications from the referring court, ( 13 ) to which that court replied on 9 April 2025.

32. Written observations were submitted to the Court in the present case by X.Y., the Prokurator Generalny (Prosecutor General, Poland), the Republic of Poland and the Commission.

33. A hearing was held on 16 March 2026 at which all those parties, except the Republic of Poland, presented oral argument. The Rzecznik Praw Obywatelskich (Ombudsman, Poland) also participated.

III. Analysis

A. Preliminary remarks

34. For the purposes of the present case, it is important to recall that, in its case-law, the Court has held that the procedure for the appointment of judges necessarily constitutes an inherent element of the concept of a ‘tribunal previously established by law’, within the meaning of the second paragraph of Article 47 of the Charter. Therefore, the independence of a tribunal may be measured, inter alia, by the way in which its members are appointed. ( 14 ) The appointment process bears consequences not only for the independence of a court or tribunal as such, but also for the composition of the bench in each case. ( 15 )

35. In Poland, judges are appointed by a decision of the President of the Republic on a proposal from the KRS, tasked to ensure the independence of courts and judges. ( 16 ) Since the legislative changes introduced by the Law of 8 December 2017, ( 17 ) the Court has considered that there exist legitimate doubts about the independence of the KRS in its role in the appointment of judges. ( 18 )

36. Nevertheless, the Court has also considered that the mere fact that a judge was appointed on the basis of a proposal from the KRS in its new composition is not sufficient to support the conclusion that the requirements inherent in the second subparagraph of Article 19(1) TEU and Article 47 of the Charter have not been met. ( 19 )

37. Rather, to decide about the independence of a particular judge, it is necessary to take into consideration all circumstances surrounding his or her appointment. ( 20 )

38. Furthermore, not every defect in the procedure for appointment leads to invalidation of the composition of a court; only those irregularities that are of such a fundamental nature as to give rise in the minds of individuals of serious and legitimate doubts that that judge is not free from the external influence, especially from the other branches of government, are relevant. ( 21 )

39. Importantly, on the basis of such a holistic assessment, the Court has found that circumstances under which judges were appointed in procedures based on KRS Resolutions 330/2018 ( 22 ) and 331/2018 ( 23 ) lead to serious and legitimate doubts in the minds of individuals as to the independence and impartiality of the persons appointed on the basis of those resolutions.

40. Those circumstances were essentially that those KRS resolutions, by which the KRS proposed those persons for appointment as judges by the President of the Republic of Poland, were suspended by the Supreme Administrative Court pending the Court’s judgment in the A.B. case, ( 24 ) that, without waiting for the final decision of that court, the President appointed those judges, and that the Supreme Administrative Court, after receiving the preliminary ruling of the Court in A.B. , annulled the KRS resolutions at issue. ( 25 )

41. At this point, it is useful to recall that, in the context of deciding whether a chamber composed of judges who were appointed in procedures raising doubts of independence is ‘court or tribunal’ for the purposes of being entitled to refer to the Court under Article 267 TFEU, the Court found in Krajowa Rada Sądownictwa ( 26 ) that the Extraordinary Chamber, to which all persons were appointed on the basis of KRS Resolution 331/2018, could not be deemed to satisfy that condition, thereby rebutting the presumption that a national court satisfies the requirements of a ‘court or tribunal’ for the purposes of Article 267 TFEU. ( 27 )

42. In Prezes Urzędu Ochrony Konkurencji i Konsumentów , ( 28 ) the Court found that presumption rebutted in relation to a person appointed on the basis of KRS Resolution 330/2018. The Court considered that even if, unlike the Extraordinary Chamber, the Civil Chamber is not a newly established chamber, the procedure appointing judges to the Extraordinary Chamber (based on KRS Resolution 331/2018) and that appointing judges to the Civil Chamber (based on KRS Resolution 330/2018) suffer from the same flaws, which are ‘sufficient in themselves to give rise to legitimate and serious doubts, in the minds of individuals, as to the independence and impartiality of that judge’. ( 29 )

43. I will refer to these procedures as ‘procedures recognised as irregular’, as it could be concluded that, in the Court’s view, the judges appointed in procedures based on KRS Resolutions 330/2018 and 331/2018 do not satisfy the EU law requirements of independence.

44. As is apparent from the order for reference, four persons appointed to the new seven-judge panel, namely JK, KS, CV and RX, as well as MB, who appointed them to that panel, were appointed as judges to the Civil Chamber on the basis of KRS Resolution 330/2018.

45. In those circumstances, by its question, the referring court essentially seeks guidance about the following three key issues: first, whether EU law precludes persons appointed in procedures recognised as irregular from participating in a panel that is invited to apply EU law as interpreted by the Court (in W.Ż. ); second, whether a decision by a person who is appointed as President of the Civil Chamber in a procedure recognised as irregular is to be regarded as having no legal effects; and third, what the consequences are of such irregularities for other judges on the panel, and more specifically, whether those judges can refuse to sit on such a panel and whether the reporting judge is entitled to appoint other judges to the panel.

46. In my view, the Court does not have jurisdiction in the present case to answer those questions (B). However, in order to be of assistance to the Court should it find otherwise, I will also analyse those questions (C).

B. Procedural objections

47. Two procedural objections have, in essence, been raised by the Ombudsman and the Commission in the present case.

48. The first objection concerns the jurisdiction of the Court. Those parties submit that there is no need for the Court to give a ruling in this case, given the impact of subsequent developments relating to X.Y.’s reinstatement as a judge and subsequent appointment as the Minister of Justice.

49. The second objection concerns the admissibility of the question referred, given the doubts of the Commission as to whether the referring court can take into account the ruling that the Court will provide.

1. Jurisdiction

50. Under Article 267 TFEU, the Court only has jurisdiction to answer questions that are necessary for the resolution of a pending dispute . In other words, there must be a case that needs to be decided by the referring court. The Court is not vested with jurisdiction to give advisory opinions on general or hypothetical questions, even if such questions might be of use for some other cases. ( 30 )

51. In the present case, as seen in points 12 to 29 of the present Opinion, the question is referred in the context of interlocutory proceedings adjacent to the main action. In these interlocutory proceedings, the seven-judge panel has to advise the three-judge panel on the legal existence of BD’s order, which had put an end to the main action and with it the interlocutory proceedings.

52. The main action is concerned with the claim for annulment of the KRS decision. If that action were successful, it would result in the reinstatement of X.Y. in the relevant division of the regional court in which he held office. However, in the meantime, X.Y. was reinstated to his previous position in that court and then resigned from his function as a judge once he was appointed as the Minister of Justice of the Republic of Poland. Therefore, the claim is devoid of purpose, as essentially claimed by the Ombudsman and the Commission.

53. However, responding to the questions sent by the Court (see point 31 of the present Opinion), the referring court explained that it did not make any findings as to whether X.Y. was reinstated in the division of the regional court from which he had been transferred, since such findings do not fall within its jurisdiction. According to that court, in so far as the appeal brought by X.Y. against the KRS decision has not been withdrawn, its task, which is to decide on the application for recusal in order to ensure that the main action will be dealt with by a properly constituted panel, remains unaffected irrespective of any changes of a factual nature relating to the main action. In other words, X.Y.’s request for the recusal of the judges of the Extraordinary Chamber remains valid, and it is, therefore, still necessary to deal with that request and resolve all the legal issues it raises. At the hearing, X.Y. confirmed that the action for annulment of the KRS decision was not revoked.

54. It is true that the Court has considered that an indication by the referring court that the main proceedings are still pending is binding on the Court and cannot, in principle, be called into question by the parties to the main proceedings. ( 31 )

55. That, however, does not alter the fact that it is for the Court, where appropriate, to examine the circumstances in which the case was referred to it by a national court in order to assess whether it has jurisdiction. ( 32 )

56. As the Court has held, ‘if it appears that the question raised is manifestly no longer relevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment.’ ( 33 )

57. In the present situation, on the one hand, the main case, to which the interlocutory proceedings relating to the recusal of judges are connected, is formally still pending. That could be an argument that the Court should give a ruling in this case.

58. Nonetheless, on the other hand, it is clear and not disputed that X.Y. can no longer be reinstated to his former position as a judge at the regional court in Poland. ( 34 ) Therefore, the main action no longer has any purpose for X.Y. as a judge and the applicant in that case.

59. What X.Y. essentially contended at the hearing is that there is still an interest in pursuing the main action from the perspective of protecting the general interest of citizens under EU law. He invoked the broader context, explaining that the continuation of the situation in which irregularly appointed judges continue to sit on judicial panels entails a risk of serious and irreparable harm to litigants and results in the breach of the principle of effective judicial protection.

60. In my understanding, and based on these submissions, it seems that X.Y., as the Minister of Justice, has indeed decided not to revoke the action he initiated when he was a judge in order to receive from the Court an interpretation of EU law which would be in the general interest of resolving problems that are still present in the Polish justice system.

61. However, the Court lacks jurisdiction to provide an interpretation of EU law in the preliminary ruling procedure by giving an advisory opinion, even if the answer would be beneficial for the general interest. ( 35 )

62. Similarly, a potential future action in damages also cannot constitute grounds for the Court to give a preliminary ruling. Such an action is not pending, ( 36 ) so the Court would be answering a hypothetical question, ( 37 ) which might never come before a court. ( 38 )

63. To conclude, in the circumstances of the present case, the fact that the procedure is still formally pending cannot override the rule that the Court does not have jurisdiction to give advisory or hypothetical opinions in the preliminary ruling procedure, especially in a situation in which the Court is aware that the main case has become devoid of object. ( 39 )

64. To my mind, the Court’s role in providing guidance to national courts through the interpretation of EU law in concrete cases is essential in order to preserve the legitimacy of the preliminary ruling procedure and the judicial, rather than advisory, nature of the Court’s role in that procedure.

65. Accordingly, I consider that the Court does not have jurisdiction in the present case, as it would exceed its judicial function to give a preliminary ruling in a case that has become devoid of object.

2. Admissibility

66. In the alternative, should the Court consider that there still exists a pending case, it is necessary to deal with the procedural objection relating to the admissibility of the request for a preliminary ruling in the present case.

67. In that respect, the Commission, referring to G. and Others (Appointment of judges to the ordinary courts in Poland) , ( 40 ) doubts whether the referring court can, under the rules of national law, take into account the Court’s ruling.

68. In G. and Others , ( 41 ) the Court found inadmissible a request for a preliminary ruling from the reporting judge in a three-judge panel of a regional court in Poland. By his questions, that reporting judge sought to ascertain whether a judge, who is a member of the same panel and who was appointed in certain specific circumstances to that court, met the requirements of an independent and impartial tribunal previously established by law under EU law.

69. The Court emphasised that the necessity, within the meaning of Article 267 TFEU, of the interpretation sought means that the national judge who decides to make a reference must be able, alone, to infer the consequences of that interpretation by assessing, in the light of that interpretation, the lawfulness of the appointment of another judge to the same panel and, where appropriate, by recusal of the latter. However, the Court considered that it was not apparent that, under the rules of national law, that reporting judge could, alone, act in that way. ( 42 )

70. In my view, the present case is readily distinguishable from the judgment in G. and Others . In that judgment, the independence of the judge that was questioned by the referring judge was not yet a matter of judicial decision by the competent national court which could assess the regularity of the procedure under which that judge was appointed.

71. On the contrary, the present case concerns persons who were appointed to the Civil Chamber in a procedure (based on KRS Resolution 330/2018), which was already considered irregular by the Court, taking into account the judgments of the Supreme Administrative Court and of the ECtHR (see point 42 of the present Opinion), that irregularity being so fundamental that it ran counter to the EU requirements of an independent and impartial tribunal previously established by law. Therefore, the referring judge in the present case, in contrast to the referring judge in G. and Others , does not have to assess himself the regularity of the appointments of certain members of the seven-judge panel, but is essentially asking about the consequences which flow under EU law when a person was appointed in a procedure recognised as irregular.

72. Accordingly, I consider that, should the Court find that there still exists a pending case, the request for a preliminary ruling in the present case is admissible.

C. Substance

1. Participation of persons appointed in procedures recognised as irregular in the panel

73. By the first part of its question, the referring court essentially asks whether the requirements of an independent and impartial tribunal previously established by law, as guaranteed by Article 19(1) TEU, read in the light of Article 47 of the Charter, preclude participation of persons appointed as judges in procedures recognised as irregular in panels invited to adjudicate cases applying EU law.

74. In the present case, the seven-judge panel must apply the judgment of the Court in W.Ż. , in order to advise the three-judge panel about the legal effects of BD’s order rejecting X.Y.’s appeal against the KRS decision.

75. In my view, the judgment in W.Ż . itself provides the answer to the first part of the referring court’s question.

76. In responding to the question referred in the W.Ż . case, the Court clarified that BD’s order should be declared null and void if the referring court concluded that the judge concerned was appointed in a procedure that disregards fundamental procedural rules in a Member State for the appointment of judges. The Court reasoned that a person appointed in a procedure recognised as irregular does not satisfy the requirements inherent in the second subparagraph of Article 19(1) TEU for an independent and impartial tribunal previously established by law. The direct effect of Article 19(1) TEU and the principle of the primacy of EU law then result in the obligation of a national court to set aside BD’s order. ( 43 )

77. Even if the Court did not use such wording, to my mind, the simplest way to understand the Court’s ruling is that BD’s order cannot have legal effects under EU law because, under EU law, that person is not a judge. The second subparagraph of Article 19(1) TEU requires, in particular, that all judges who may be invited to apply EU law be independent. Independence is, among other things, guaranteed by procedures for the appointment of judges which must be such as to not give rise in the minds of individuals of serious and legitimate doubts that persons appointed to judicial positions are prone to external control, especially by other branches of government. Persons appointed as judges in a procedure which disregards fundamental rules of the procedure for the appointment of judges in national law and which itself raises doubts of being controlled by the legislative and executive branches are not judges. As judicial decisions may only be adopted by judges, decisions of persons who were appointed in procedures recognised as irregular cannot have legal effects.

78. Whereas the W.Ż . case concerned a decision adopted by a single judge forming a panel, in the present case the panel consists of seven judges, four of whom have been appointed in a procedure contrary to Article 19(1) TEU, read in the light of Article 47 of the Charter. In that respect, in AW ‘T’ , ( 44 ) the Court found that it ‘has already held that the presence, in the body concerned, of a single judge appointed in the same circumstances as those at issue in the case which gave rise to that judgment [in Krajowa Rada Sądownictwa ] is sufficient to deprive that body of its status as an independent and impartial tribunal previously established by law, for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter’.

79. It follows that a mixed panel, composed of regularly and irregularly appointed judges, is not an independent and impartial tribunal previously established by law and therefore does not satisfy the requirements of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter.

80. As I have already explained (see point 37 of the present Opinion), a decision that an appointment procedure was irregular so as to lead to the conclusion that a person appointed is not a judge depends on all circumstances surrounding the appointment, which national courts must assess. It is not for the Court to make such an assessment, even though the Court may give guidance to the national courts as regards which elements should be taken into account. ( 45 )

81. Furthermore, even if specific appointments are not to be assessed by the Court, especially not in the preliminary ruling procedure, the Court has, nevertheless, as I have also already explained (see points 41 and 42 of the present Opinion), recognised that certain procedures in which persons were appointed as judges to the Supreme Court were irregular because that was established by national courts and the ECtHR.

82. To my mind, therefore, persons who were appointed to the seven-judge panel in its new formation, who were appointed as judges to the Supreme Court in the procedure initiated by KRS Resolution 330/2018 or 331/2018, which it is for the referring court to verify, are not judges and cannot sit on a panel which is invited to apply EU law as interpreted by the Court and which, according to national law, is to be composed of the judges.

83. Additionally, I agree with the line of argument advanced by X.Y. that, together with the problem of independence, there is also an issue of impartiality of the judges in the present case. Those persons, appointed in the same procedure as BD to the Supreme Court, would in fact rule on their own case. If they find that the procedure in which BD was appointed was irregular, that would affect their own position as judges. Indeed, as the Court has held, judges who are called upon to give a ruling in a concrete case must not only be independent but also impartial, in the sense that they have no personal interests in the outcome of the case. ( 46 ) If the persons at issue were to be considered judges and could be appointed on the panel ( quod non ), their participation in this concrete procedure would be prevented by the requirement of impartiality.

84. In conclusion, I propose that the Court answer the first part of the question referred that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, must be interpreted as precluding the participation on a panel of persons appointed as judges to the Supreme Court in breach of the fundamental rules of national law regulating the appointment of judges which raises serious and legitimate doubts as to the independence of those persons in the minds of individuals.

2. Legal effects of decision s of the President of the Civil Chamber

85. By the second part of its question, the referring court essentially asks whether the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, is to be interpreted as meaning that decisions of the President of the Civil Chamber on the composition of a deciding panel of the Supreme Court are to be regarded as having no legal effects if they were made by a person who was appointed as a judge in a procedure recognised as irregular.

86. At the outset, I find it important to observe that the President of the Civil Chamber was appointed as a judge to that court in a procedure based on KRS Resolution 330/2018. As already stated, that procedure was already considered by the Court as sufficiently irregular to put in serious doubt the independence of the appointed persons.

87. In fact, this part of the question has two aspects: first, whether a decision of a person appointed irregularly as a judge has legal effects, and, second, whether the potential irregularity of such a decision automatically affects the validity of the composition of the panel appointed thereby and the decisions it takes. Most parties in the proceedings before the Court were concerned with the second aspect of this question.

88. In Daka , ( 47 ) the Court made a distinction between decisions on the internal organisation of a court and judicial decisions putting an end to proceedings. It then concluded that the first type of decision, even if adopted by a person appointed as a judge in a procedure recognised as irregular, ‘is not, in itself, sufficient to justify the conclusion that the judicial panels thus constituted and hearing those cases must also be regarded as not constituting an independent and impartial tribunal previously established by law within the meaning of EU law’. ( 48 ) Thus, in Daka , the Court gave an interpretation that is relevant for the second aspect of the question referred.

89. That finding is indeed in conformity with other decisions of the Court in which it emphasised that the assessment of the regularity of the composition of a court, or of a deciding panel, cannot depend on one factor, but must be assessed on the basis of all relevant circumstances. ( 49 ) In that sense, as submitted by the Ombudsman, the mere fact that a panel was composed by a decision of a person who was appointed as a judge in a procedure recognised as irregular, even if it could be taken into account as one element, should not alone deprive the panel of the status of an independent and impartial tribunal previously established by law. If all the judges on such a panel were judges and have decided independently in accordance with the law, the decision of such a panel, even if appointed by a person irregularly appointed as a judge, would not be invalid.

90. However, that is a different issue from the question whether a decision of a person appointed as a judge in a procedure recognised as irregular could be considered legally valid.

91. To my mind, the answer to that question depends on whether, under national law, certain decisions which are themselves not decisions by which a case is decided, but which organise the way in which a case is to be decided, are entrusted to judges, or may, on the contrary, be taken by persons having administrative functions in a court.

92. If national law provides that the composition of panels is to be decided by a judge having a certain function in the court, such as a president of the court or chamber, then a decision composing a panel does not have legal effects if the person who adopted it is not a judge due to the recognised irregularities in a procedure in which that person was appointed as a judge. However, national law may provide for the automatic composition of panels based, for example, on algorithms, or other allocation systems, which are merely turned into a decision by a person having a certain function in a court. In such a case, it does not matter whether a person adopting the decision is a judge or not.

93. If national law entrusts certain types of decisions on the internal organisation of a court to a person who is a judge for the purpose of ensuring the respect of the independence and impartiality of judges, then a decision of that kind adopted by a person who is not a judge is not legally valid.

94. I understand in this way the line of argument put forward by X.Y., with which I agree in essence, and according to which the standard to be applied to a decision of the President of the Civil Chamber in the present case is not the one established in Daka , but rather the one established in Commission v Poland (Ultra vires review of the Court’s case-law – Primacy of EU law) . ( 50 ) In that judgment, the Court, among other things, assessed the functions of the President of the Trybunał Konstytucyjny (Constitutional Court, Poland). The Court stressed that organisational decisions of the President of that courtare undoubtedly capable of influencing the activity of that court, which means that such decisions must be adopted by a person who was appointed on the basis of rules which leave no legitimate doubts as to the use of the President’s prerogatives and duties as an instrument to influence the judicial activity of that court or to exercise political control over that activity. ( 51 )

95. In conclusion, I propose that the Court answer the second part of the question referred that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, must be interpreted as depriving decisions on the internal organisation of a court of legal validity if such decisions are entrusted, on the basis of national law, to a judge, if the person who adopts such a decision was appointed as a judge in a procedure which infringes Article 19(1) TEU. However, the lack of legal validity of such a decision establishing the composition of a panel cannot automatically lead to the conclusion that the composition of that panel is invalid or that a decision of that panel does not produce legal effects.

3. Consequences

96. By the third part of its question, the referring court essentially asks whether the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, is to be interpreted as meaning that the finding that the seven-judge panel is not an independent and impartial court previously established by law allows judges that are part of that panel to refuse to sit on it, and whether, in such a case, the reporting judge may himself or herself designate the composition of the panel.

97. In W.Ż ., the Court held, referring to its judgment in A.B. , that ‘where it is proved that the second subparagraph of Article 19(1) TEU has been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply those provisions and to apply instead the national provisions previously in force while itself exercising the judicial review envisaged by those latter provisions.’ ( 52 )

98. Thus, while the direct effect of the second subparagraph of Article 19(1) TEU in combination with the principle of the primacy of EU law may result in the setting aside of national rules contrary to that provision, filling the gaps thus created depends on national law.

99. In my view, the three duly appointed judges can refuse to sit on the seven-judge panel. They could rely on the primacy of EU law to conclude that the panel is irregularly formed and could, if necessary, set aside any rule of national law that points to a different conclusion. However, there does not seem to be a rule of national law that prohibits those judges to refuse to participate in adjudication until the panel is composed. There is, therefore, no need to set aside any rule of national law. Furthermore, the possibility for those judges to refuse to sit in such a panel is not a right conferred by EU law, but rather flows from the fact that the panel at issue has not been composed of seven judges, and the appointed judges cannot sit on it until it is so composed.

100. Whereas primacy enables the judges to hold the panel as non-existent, that principle cannot resolve the question as to how the panel should be validly formed. That question is to be determined by national law, which itself has to be in conformity with EU law. Therefore, unless national law provides for the possibility that the reporting judge composes a panel, in circumstances where there is no President of the Civil Chamber who was regularly appointed as a judge and who is supposed to appoint judges of the panel, EU law does not establish such a right.

101. In other words, whereas the second subparagraph of Article 19(1) TEU might be clear enough to provide direct effect to that provision that allows for the conclusion that the condition of independence of judges is infringed, ( 53 ) it cannot be deemed to be clear enough to provide rules relating to the organisation of the judiciary in a Member State, and thus bestow a right on the reporting judge to form a panel.

102. Article 19(1) TEU may serve as a yardstick for the assessment of the legality and setting aside of existing national rules (a negative decision), but may not replace or create missing national rules (a positive decision).

103. The solution for the formation of panels would therefore have to be found by interpreting national law, ( 54 ) which in turn has to be consistent with EU law. ( 55 ) If such a solution cannot be found in the national law, that may be a signal to a legislature that such a gap, which cannot be filled through judicial interpretation, has to be closed by legislative measures.

104. In conclusion, I propose that the Court answer the third part of the question referred that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, must be interpreted as enabling judges to refuse to sit on a panel whose composition includes persons who were appointed as judges in a procedure which is itself contrary to the second subparagraph of Article 19(1) TEU, until the panel is validly formed. However, the second subparagraph of Article 19(1) TEU does not establish the right for a reporting judge to form a panel in such circumstances.

IV. Conclusion

105. In the light of all the foregoing considerations, I propose that the Court should rule that it has no jurisdiction to answer the question referred by the Sąd Najwyższy (Supreme Court, Poland) in the present case.

In the alternative, I propose that the Court should reply to that question as follows:

(1) The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as precluding the participation on a panel of persons appointed as judges to the Sąd Najwyższy (Supreme Court, Poland) in breach of the fundamental rules of national law regulating the appointment of judges which raises serious and legitimate doubts as to the independence of those persons in the minds of individuals.

(2) The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights,

must be interpreted as depriving decisions on the internal organisation of a court of legal validity if such decisions are entrusted, on the basis of national law, to a judge, if the person who adopts such a decision was appointed as a judge in a procedure that infringes Article 19(1) TEU. However, the lack of legal validity of such a decision establishing the composition of a panel cannot automatically lead to the conclusion that the composition of that panel is invalid or that a decision of that panel does not produce legal effects.

(3) The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights,

must be interpreted as enabling judges to refuse to sit on a panel whose composition includes persons who were appointed as judges in a procedure which is itself contrary to the second subparagraph of Article 19(1) TEU, until the panel is validly formed. However, the second subparagraph of Article 19(1) TEU does not establish the right for a reporting judge to form a panel in such circumstances.

1 Original language: English.

i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2 C‑521/21, ‘ Rzecznik Praw Obywatelskich ’, EU:C:2026:242.

3 ECtHR, 23 November 2023 (CE:ECHR:2023:1123JUD005084921).

4 See Rzecznik Praw Obywatelskich (in particular paragraph 62).

5 After the change of government in December 2023 and in the light of the intentions of the new government to restore the rule of law in Poland, the Commission withdrew its reasoned proposal initiating the Article 7(1) TEU procedure on 29 May 2024.

6 See, for example, Rzecznik Praw Obywatelskich (paragraph 58).

7 See Urgent Joint Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on the draft law concerning the status of judges appointed or promoted between 2018 and 2025 and other related matters (CDL-AD(2026)002, 12 March 2026). Poland also put forward an alternative approach which received criticism. See Joint Opinion No 1276/2026 of the Venice Commission and the DGI of the Council of Europe on the draft law ‘on reinstating the right to a fair trial and hearing the case without undue delay’, proposed by the President of the Republic (CDL-AD(2026)020, 16 June 2026). For further opinions dealing with other relevant issues in relation to Poland, see the Venice Commission’s website, available at: https://www.coe.int/en/web/venice-commission/poland.

8 C‑487/19, ‘ W.Ż .’, EU:C:2021:798.

9 See W.Ż . (in particular paragraphs 138 to 154 and 161).

10 See W.Ż. (paragraph 155).

11 However, X.Y. submitted that, in the meantime, his applications for recusal of those four persons were dismissed by a judge, who, according to his submission, was also appointed in flagrant infringement of the law.

12 These facts were confirmed by X.Y. at the hearing.

13 The clarifications essentially concerned, first, whether X.Y. had been reinstated as a judge and the implications of that fact for the various proceedings brought and, second, whether under Polish law the referring court has jurisdiction to assess the legality with EU law of the appointment of another judge as a member of the same panel as well as its jurisdiction under Polish law to review the legality of decisions by the President of the Supreme Court appointing compositions of judges and the available remedies against such decisions.

14 See, for example, Rzecznik Praw Obywatelskich (paragraph 75 and the case-law cited).

15 See, for example, Rzecznik Praw Obywatelskich (paragraph 73 and the case-law cited).

16 That is provided for in Article 186(1) of the Constitution of the Republic of Poland. Additionally, Article 179 thereof provides: ‘The President of the Republic shall appoint judges, on a proposal from the [KRS], for an indefinite period.’

17 These changes included premature termination of the mandates of the judges serving in that body and modification of the rules of appointment of new members, most of which were previously elected by judges, whereas the new rules vested that power in the parliament. Those changes, if placed in the relevant context, such as parallel amendments of the Law on the Supreme Court, raised serious doubts that the process of appointment of judges in Poland is controlled by the legislative and executive. See, in that respect, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 143). See also ECtHR, 8 November 2021, Dolińska-Ficek and Ozimek v. Poland (CE:ECHR:2021:1108JUD004986819, §§ 309 to 312 and 320).

18 See, for example, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraphs 101 to 108), and W.Ż. (paragraph 150).

19 See, for example, Rzecznik Praw Obywatelskich (paragraph 83 and the case-law cited). Likewise, the Court has considered that the lack, for the participants in the appointment procedure concerned, of a right to an effective judicial remedy is also not sufficient, in itself, to conclude that a court or panel composed of judges appointed in such a procedure is not ‘previously established by law’ for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter (see paragraph 88 of that judgment).

20 See, for example, Rzecznik Praw Obywatelskich (paragraphs 78 and 91 and the case-law cited)

21 See, for example, judgment of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX‑II and C‑543/18 RX‑II, EU:C:2020:232, paragraph 75), and Rzecznik Praw Obywatelskich (paragraphs 76 and 77).

22 KRS Resolution No 330/18 of 28 August 2018 (‘KRS Resolution 330/2018’) recommended seven candidates to sit as judges of the Civil Chamber, including the five persons at issue in the present case (MB, JK, KS, CV and RX).

23 KRS Resolution No 331/2018 of 28 August 2018 (‘KRS Resolution 331/2018’) recommended 20 candidates to sit as judges of the Extraordinary Chamber, including BD, the effects of whose order are at the root of the present case.

24 Judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, ‘ A.B. ’, EU:C:2021:153).

25 See, for example, judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, ‘ Krajowa Rada Sądownictwa ’, EU:C:2023:1015, paragraphs 50 to 54).

26 See Krajowa Rada Sądownictwa (paragraphs 40 to 78). See also, for example, orders of 9 April 2024, T. (Audiovisual programmes for children ) (C‑22/22, EU:C:2024:313), and of 21 June 2024, Kancelaria B. (C‑810/23, EU:C:2024:543).

27 Such a presumption was confirmed in the judgment of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, in particular paragraphs 69 and 72), in which the Court also explained that the presumption may be rebutted where a final judicial decision handed down by a national or international court or tribunal leads to the conclusion that the judge constituting the referring court is not an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter.

28 See judgment of 7 November 2024 (C‑326/23, EU:C:2024:940, paragraphs 20 to 37). In that case, the Court took into account the ECtHR’s judgment of 3 February 2022, Advance Pharma sp. z o.o. v. Poland (CE:ECHR:2022:0203JUD000146920). See also order of 3 March 2025, Rabal and Drałka (C‑586/24 and C‑605/24, EU:C:2025:206).

29 Judgment of 7 November 2024, Prezes Urzędu Ochrony Konkurencji i Konsumentów (C‑326/23, EU:C:2024:940, paragraph 35).

30 See judgment of 16 July 1992, Meilicke (C‑83/91, EU:C:1992:332, paragraph 25). This has been repeated on numerous occasions. See, for example, judgment of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment) (C‑508/19, EU:C:2022:201, paragraphs 60 and 62).

31 See, for example, judgment of 2 February 2023, Towarzystwo Ubezpieczeń Ż (Misleading standard assurance contracts) (C‑208/21, EU:C:2023:64, paragraph 45 and the case-law cited).

32 See judgment of 16 December 1981, Foglia (244/80, EU:C:1981:302, paragraphs 18 to 21); see also, for example, judgment of 22 June 2023, État belge (Circumstances subsequent to a return decision) (C‑711/21 and C‑712/21, EU:C:2023:503, paragraph 31).

33 Judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 70 and the case-law cited) (emphasis added).

34 The Ombudsman observed that X.Y. can no longer be reinstated in the previous division of the court in which he had held office, as he is no longer a judge.

35 See, in that regard, for example, judgment of 24 November 2022, Banco Cetelem (C‑302/21, EU:C:2022:919, in particular paragraphs 30 to 34), and order of 29 January 2020, Zakład Ubezpieczeń Społecznych (C‑522/18, EU:C:2020:42, in particular paragraphs 26 to 35).

36 X.Y. confirmed at the hearing that, upon taking the post of Minister, he revoked the claim for damages. That claim is, therefore, currently not pending.

37 See, in that regard, order of 10 June 2011, Mohammad Imran (C‑155/11 PPU, EU:C:2011:387, paragraphs 19 and 20).

38 Additionally, the Ombudsman explained that, under Polish law, in an action for damages, the court deciding a case would be empowered to assess legality of the KRS decision for the purposes of that case. Therefore, the annulment of the KRS decision is not necessary for a civil court to rule in the future on an action for damages brought by X.Y.

39 In that sense, the Ombudsman indicated that when the subject matter of the case is no longer valid, it is the practice of the Supreme Court to close such proceedings.

40 See judgment of 9 January 2024 (C‑181/21 and C‑262/21, ‘ G. and Others ’, EU:C:2024:1).

41 See G. and Others (paragraphs 66 to 73).

42 See G. and Others (paragraphs 69 and 70).

43 See W.Ż. (paragraphs 152 to 155).

44 Judgment of 4 September 2025 (C‑225/22, EU:C:2025:649, paragraph 57). See also, for example, judgment of 16 July 2026, Rzecznik Dyscyplinarny Sądu Najwyższego (C-96/24, C-103/24 and C-112/24, paragraph 84).

45 The Court has indeed provided such guidance to the referring court in paragraphs 134 to 155 of the W.Ż . judgment.

46 See, for example, judgment of 14 November 2024, S. (Modification of the formation of the court) (C‑197/23, EU:C:2024:956, paragraph 60). See also, most recently, judgments of 16 July 2026, Gekus (C-748/23, in particular paragraphs 50 to 62), and of 16 July 2026, Rzecznik Dyscyplinarny Sądu Najwyższego (C-96/24, C-103/24 and C-112/24, in particular paragraphs 67 to 79), in which the Court ruled, having regard to the principle of impartiality, that the members of a panel called upon to rule on whether a judge’s participation in a given proceeding is such as to infringe the requirements of an independent and impartial tribunal previously established by law cannot themselves be in a situation identical to that of the judge in question.

47 See judgment of 1 August 2025, Daka and Others (C‑422/23, C‑455/23, C‑459/23, C‑486/23 and C‑493/23, ‘ Daka ’, EU:C:2025:592, paragraph 86).

48 Daka (paragraph 87).

49 See, in that regard, Rzecznik Praw Obywatelskich (paragraphs 78 and 91 and the case-law cited).

50 Judgment of 18 December 2025 (C‑448/23, EU:C:2025:975).

51 See judgment of 18 December 2025, Commission v Poland (Ultra vires review of the Court’s case-law – Primacy of EU law) (C‑448/23, EU:C:2025:975, paragraphs 278 and 279).

52 W.Ż. (paragraph 144).

53 As the Court recently held in Rzecznik Praw Obywatelskich (paragraph 51): ‘The second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved, which is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law’ (emphasis added).

54 See, in that respect, Rzecznik Praw Obywatelskich (paragraphs 63 to 65).

55 The Ombudsman and the Commission referred in that respect to Article 16(4) of the Rules of Procedure of the Supreme Court, which might be applied by analogy. X.Y. proposed, responding to a question asked at the hearing, that there is a customary rule that a judge next in line on the list is appointed, unless that judge’s workload is already too heavy. Whether such rules can be used so as to provide a solution as to how to form a panel when the person who was appointed for that function was appointed irregularly is a matter for the referring court to verify.